Citation Nr: 0503014
Decision Date: 02/07/05 Archive Date: 02/15/05
DOCKET NO. 99-04 178A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to service connection for psychiatric disorder,
to include major depression and a personality disorder.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart of the U.S.A.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The veteran had honorable service from May 14, 1984 until
January 8, 1985.
This appeal comes before the Department of Veterans Affairs
(VA) Board of Veterans' Affairs (Board) from a December 1998
rating decision of the VA Regional Office (RO) in Roanoke,
Virginia that denied service connection for major depression
and a personality disorder.
The veteran was afforded a personal hearing at the RO in May
1999. The transcript is of record.
The record reflects that the appellant was scheduled for a VA
examination in June 2003 (to which she did not report) and a
Board hearing in January 2002, (to which she also did not
appear). There has been no request for rescheduling.
Therefore, the Board will review the claim based on the
current record.
FINDINGS OF FACT
1. All notification and development action needed to
adjudicate the claim on appeal has been accomplished.
2. The veteran was discharged from service on the basis of a
personality disorder.
3. The clinical evidence of record does not reflect a
diagnosis of an acquired psychiatric disorder, to include
post traumatic stress disorder and major depression disorder,
for many years after discharge from active duty.
4. There is no competent evidence of a nexus between any
diagnosed acquired psychiatric disorder and the veteran's
active military service.
CONCLUSIONS OF LAW
1. An acquired psychiatric disorder was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1131, 5103A, 5107
(West 2002); 38 C.F.R. § 3.303 (2004).
2. A personality disorder was not incurred in or aggravated
by service. 38 U.S.C.A. §§ 1131, 5103A, 5107; 38 C.F.R.
§ 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
At the outset, the Board notes that during the pendency of
this appeal, the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was
signed into law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and
5107 (West 2002). To implement the provisions of the law,
the VA promulgated regulations published at 66 Fed. Reg.
45,620 (Aug. 29, 2001) codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2004)). The Act and implementing
regulations essentially eliminate the concept of the well-
grounded claim. 38 U.S.C.A. § 5107(a) (West 2002); 66 Fed.
Reg. 45,620 (Aug. 29, 2001 (codified as amended at 38 C.F.R.
§ 3.102 (2004)). They also include an enhanced duty on the
part of VA to notify a claimant of the information and
evidence needed to substantiate a claim. 38 U.S.C.A. § 5103
(West 2002); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at
38 C.F.R. § 3.159(b) (2004)). In addition, they define the
obligation of VA with respect to its duty to assist the
claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West
2002); 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at
38 C.F.R. § 3.159(c) (2004)).
Considering the record in light of the duties imposed by the
VCAA and its implementing regulations, the Board finds that
all notification and development action needed to fairly
adjudicate the claim on appeal has been accomplished. As
evidenced by the March 1999 statement of the case and the
September 1999 and August 2003 supplemental statements of the
case, the appellant and her representative have been notified
of the law and regulations governing entitlement to the
benefit she seeks, the evidence which would substantiate her
claim, and the evidence which has been considered in
connection with his appeal.
Moreover, the Board also finds that the statutory and
regulatory requirement that VA notify a claimant what
evidence, if any, will be obtained by the claimant and which
evidence, if any, will be retrieved by the VA, has been met.
See Quartuccio v. Principi, 16 Vet. App. 183 (2002)
(addressing the duties imposed by 38 U.S.C.A. § 5103(a) and
38 C.F.R. § 3.159). In a letter to the appellant dated in
August 2002, the RO informed her of what the evidence had to
show to establish entitlement to service connection for
psychiatric disability, what medical and other evidence the
RO needed from her, what information or evidence the
appellant could provide in support of the claim, and what
evidence VA would try to obtain for her.
In Pelegrini v. Principi, 18 Vet. App. 112, (2004) (Pelegrini
II), the United States Court of Appeals for Veterans Claims
(Court) essentially held that VA must provide notice "upon
receipt" and "when" a substantially complete application
for benefits is received. This mandates that notice precede
an initial unfavorable AOJ (agency of original jurisdiction)
decision on a service-connection claim.
The Court also recognized, however, that where the notice was
not mandated at the time of the initial AOJ decision, as is
the situation in the appellant's case, the AOJ did not err in
not providing such notice specifically complying with section
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 because an
initial AOJ adjudication had already occurred. In such a
case, it was sufficient for the Board to ensure that proper
notice was given. Pelegrini v. Principi, 120, 122-4.
The Board finds that all necessary development has been
accomplished. VA has made reasonable and appropriate efforts
to assist the appellant in obtaining the evidence necessary
to substantiate her claim as evidenced by scheduling her for
a VA psychiatric examination in June 2003, to which she
failed to report. See 38 U.S.C.A. § 5103A(d). The veteran
had previously been advised that she was being scheduled for
the examination, and a supplemental statement of the case,
advised her of VA's finding that she had not reported for the
examination. The veteran has not alleged that she failed to
receive notice of the examination. In such a case, VA will
decide the claim on the basis of the evidence of record.
38 C.F.R. § 3.655(a),(b) (2004).
The case underwent further development at the Board in May
2002, and was remanded by a decision of the Board dated in
July 2003. Under these circumstances, the Board finds that
adjudication of the claim on appeal poses no risk of
prejudice to the appellant. See, e.g., Bernard v. Brown, 4
Vet. App. 384, 394 (1993). The claim is ready to be
considered on the merits.
Factual background
The veteran was examined for enlistment in July 1983 and
indicated that she had had symptoms that included depression
and/or excessive worry, nervous trouble, and dizziness or
fainting spells. Following examination, psychiatric status
was evaluated as normal and she was determined to be
qualified for enlistment. Administrative records show that
she entered active duty on May 14, 1984.
Service medical records reflect that on May 18, 1984, she was
seen with complaints of dizzy spells and episodes of
'blacking out' that occurred twice a week lasting three to
five minutes, followed by a headaches. She reported that the
condition had existed since being in the Navy. Upon
subsequent consultation, the veteran was noted to have stated
that she did not lose consciousness at those times, and could
hear things going on around her. A history of similar
episodes prior to entry was recorded. It was indicated that
she had been to "REU" for problems adjusting to training,
and that discharge from service had been recommended if there
was no improvement. The veteran stated that she was very
nervous, and felt that this might have been contributing to
her adjustment difficulties. Following evaluation, a
pertinent assessment of problems adjusting to training was
rendered for which further counseling was advised.
The record reflects that several days later in May 1984, the
appellant was evaluated for ideations of suicide 'by hanging'
which she explained was a method of ventilating because she
was "depressed." She expressed regret that she had said it
because it had caused her embarrassment. The veteran denied
current ideations of suicide and said she was 'just kidding'
and did not want to hurt herself. It was reported that she
had a past history of suicidal ideation one month before when
she had told her parents she wanted to "commit suicide."
On current presentment, the veteran was observed to display a
euphoric mood with smiling affect and laughed through most of
the interview. It was felt that she was an immature
individual with poor spontaneous judgment. She stated that
she had no idea that boot camp was going to be 'this hard'
and felt like it would be more like 'summer camp.' It was
noted that the veteran wanted to continue in training, and
that she appeared to be highly motivated to complete it.
Following mental status examination, impressions of no
significant psychopathology and problems adjusting to the
routine pressures and stresses of training were rendered.
She requested transfer to another duty station to "start
fresh," and was returned to duty.
Service medical records dated in mid August 1985 show that
the veteran was admitted for observation and safekeeping due
to depression and some threats of self harm. Her history was
noted to include some indications of previous emotional
instability, to include a threat of suicide by hanging at her
previous duty station. It was reported that the veteran had
apparently completed her training, and was assigned to her
first duty.
The veteran was observed closely and underwent psychological
evaluation that was reported to be suggestive of an
individual descriptively categorized as having a passive-
aggressive personality of the passive-dependent type in her
case. The examiner stated that she continued to present a
clinically labile picture, apparently vacillating from
denying that there was a problem and also denying suicidal
intent. It was recommended that she be sent to a facility
where she could be more intensely evaluated. Her prognosis
was guarded. A discharge diagnosis of passive dependent
personality was rendered.
The veteran was re-admitted several days later after an
apparent overdose on over-the-counter medication that was
believed to be a suicidal gesture. In the discharge summary
dated in August 1984, it was reported that she had taken a
significant number of Sominex tablets and had drunk a bottle
of cough syrup. She was treated with an emetic and activated
charcoal.
Following admission, the appellant was observed to be very
withdrawn and did not communicate with staff, other patients
or the examiner. Upon discharge, it was commented that she
continued to utilize inappropriate mechanisms of suicidal
threats or gestures that had not been life-threatening so
far, but that she might eventually be accidentally more
successful than she genuinely intended. It was noted that
because of this, she required constant observation to prevent
her from making another suicidal gesture which could be
injurious.
The veteran was transferred to another facility for further
treatment where personal history was obtained indicating
there had been problems during and following her adolescence,
including running away from home at the age of 16, and being
jailed for several days for shoplifting. Over the course of
the admission, she was afforded comprehensive psychometric
testing, the results of which were felt to be consistent with
a diagnosis of personality disorder with borderline features.
It was reported that testing suggested an increase in
infantile dependent needs for nurturance and affection with a
tendency to spontaneously relate to others in a playful and
childlike manner in trying to get needs met. It was found
that she struggled hard to suppress her frustrated dependency
needs with some anger as a result. Among other things, it
was opined that under stress, she might express her feelings
in an exaggerated fashion, possibly trying to hurt others by
doing harm to herself.
The veteran was placed in an open ward milieu, and received
group, occupational and recreational therapy. She was
treated with medication. During the course of
hospitalization, the decision was made to recommend her for
administrative separation from the Navy due to her resistance
to treatment, questionable motivation for continued military
duty and the diagnosis of personality disorder, moderate to
severe. Upon discharge from hospitalization, she was not
seen as suicidal, depressed, or threatening suicide.
Outpatient follow-up counseling was recommended. Final
diagnoses upon discharge included borderline personality
disorder, moderate to severe, slightly improved.
In an Evaluation for Administrative Action dated in October
1984, it was certified that the veteran had been evaluated in
the department of mental health and had been found to
manifest borderline personality disorder, severe, with
passive-aggressive features.
A detailed and comprehensive chronology of events was
recited, beginning from her need for special counseling and
psychological evaluation as early as basic training. It was
opined that the veteran suffered from severe identity
disturbance and marked shifts in mood that included
depression, irritability and intense anger. It was felt that
she had very limited coping skills to deal with mood
fluctuations, was prone to impulsive behavior and continued
to threaten suicide intermittently. It was noted that she
was not amenable to counseling.
In summary, it was determined that there was no evidence of
psychosis or neurosis that would preclude action under Navy
regulatory/code provisions, that the veteran was unable to
adjust socially and emotionally to service life, and that she
met the criteria for administrative separation.
Upon examination for administrative discharge in mid December
1984, a defect of borderline personality disorder, severe,
was recorded. The record reflects that the appellant made a
suicide attempt in late December 1984, reportedly after she
discovered that she was not getting out of service as quickly
as anticipated.
The veteran filed a claim in July 1998 for service connection
for a personality disorder which she indicated she had had
from 1984 to the present
Subsequently received were private clinical records dating
from 1996 from multiple providers showing that she sought
treatment for several complaints and disorder, as well as for
psychiatric symptomatology and medication management. She
was seen for anxiety with panic attacks in January 1998. A
U. S. Postal Service statement dated in September 1998 showed
an assessment of major depression. A private practitioner,
Dr. Ellwood, wrote in January 1997 that the appellant was
experiencing episodes of severe anxiety that exacerbated her
irritable bowel syndrome.
The veteran's mother wrote in April 1999 that statements in
the record that the veteran ran away from home, and was
unable to keep a job prior to entering service, were untrue.
The mother stated that the appellant lived at home prior to
service, helped to take care of her siblings, worked part
time, attended school, and maintained good grades.
The appellant presented testimony upon personal hearing in
May 1999 to the effect that she had a hard time coping during
boot camp because she was singled out and harassed by her
drill instructors. She related that she was "shocked and
upset" at having to change her military occupational
specialty from yeoman to boatswain mate because she had
planned to start her career as a secretary, and did not want
to be on a ship. The appellant testified that this resulted
in a great deal of stress, became convinced that the military
was not for her, and that this led to her attempted suicide.
The veteran testified that after service, she sought
treatment in a clinic in Oklahoma that she was not sure
currently existed. She related that she moved to
Pennsylvania and was hospitalized at St. Mary's Hospital, but
had been unsuccessful in trying to obtain records from that
facility. The appellant said that she subsequently moved to
Richmond, Virginia, and tried to seek help from VA there, but
had been turned down because she had a dishonorable
discharge. She stated that she currently received treatment
from her Post Office employer's physician, and through her
health plan. She related that her doctor had told her she
has post traumatic stress disorder.
The veteran was scheduled for a VA examination in June 2003,
but as noted previously, the record indicates that she failed
to appear on the scheduled date and time.
Legal Analysis
The veteran contends that she now has an acquired psychiatric
disorder, claimed as major depressive disorder, as well as a
personality disorder which are of service onset for which
service connection should be granted.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated in active
military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.
§ 3.303. To establish service connection, there must be
evidence of an etiological relationship between a current
disability and service. See Cuevas v. Principi, 3 Vet. App.
542, 548 (1992), citing Rabideau v. Derwinski, 2 Vet. App.
141, 143 (1992).
In the field of mental disorders, personality disorders which
are characterized by developmental defects or pathological
trends in the personality structure manifested by a lifelong
pattern of action or behavior, chronic psychoneurosis of long
duration or other psychiatric symptomatology shown to have
existed prior to service with the same manifestations during
service, which were the basis of the service diagnosis, will
be accepted as showing pre-service origin. Personality
disorders are not diseases or injuries within the meaning of
applicable legislation. 38 C.F.R. § 3.303(c). Therefore, a
personality disorder is not a service-connectable condition.
See Winn v. Brown, 8 Vet. App. 510, 516 (1996).
The service medical records show that prior to entering
service, the veteran indicated that she had problems with
depression and/or excessive worry, nervousness and dizziness
and/or fainting spells. Despite these admissions, she was
not found to have a mental disorder on enlistment examination
in July 1983. The evidence reflects, however, that no more
than four or five days into basic training, she was noted to
have had counseling for problems adjusting to the military,
and shortly thereafter, engaged in repeated self-harm
statements and/or gestures leading to hospitalization. After
close observation and psychological evaluation, it was found
that her behavior was suggestive of a passive-aggressive
personality, of the passive-dependent type in her case.
This diagnosis was reiterated throughout the remainder of her
stay in service. Subsequent psychometric testing revealed
results felt to be consistent with a diagnosis of personality
disorder with borderline features. She was determined to be
unable to adjust socially and emotionally to service and was
administratively discharged primarily for the diagnosis of
personality disorder, moderate to severe, with passive-
aggressive features.
The record thus reflects that the veteran was clearly
discharged on the basis of a personality disorder and that
there is no competent evidence of psychosis or neurosis at
separation.
Although service connection may be granted under limited
circumstances for disability due to aggravation of a
constitutional or developmental abnormality by superimposed
disease or injury (see VAOPGCPREC 82-90, 55 Fed. Reg. 45,711
(1990); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995);
Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)), there is no
medical showing that this is warranted in this case. There
is no evidence of a superimposed acquired psychiatric
disability during service.
The appellant asserts that she was treated for psychiatric
symptomatology at various facilities very shortly after
release from active duty, but has not provided clinical
evidence that indicates such treatment was for an acquired
psychiatric disorder. Moreover, she has stated that those
records are not available or are unable to be retrieved.
The medical evidence shows that some 10 or more years after
administrative separation, she began to receive psychological
treatment for which several diagnoses have been provided,
including anxiety and major depression. She herself states
that her doctor has told her she has posttraumatic stress
disorder. The Board points out, however, there is no
competent medical evidence of record of a nexus between any
acquired psychiatric disorder diagnosed post service, and the
veteran's active military service.
The Board emphasizes that the appellant alone cannot support
the claim on the basis of her assertions. As a layperson
without medical training and expertise, she is not competent
to provide a probative opinion on a medical matter, such as
the relationship between any current psychiatric disability
and active service. See Bostain v. West, 11 Vet. App. 124,
127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492
(1992). See also Routen v. Brown, 10 Vet. App. 183, 186
(1997) ("a layperson is generally not capable of opining on
matters requiring medical knowledge"). Consequently, the
veteran's opinion in this matter does not constitute
competent evidence of the required nexus.
The Board also points out that although the veteran currently
carries diagnoses that include major depression, a psychosis
has not been reported. See 38 C.F.R. § 4.130 (2004) (listing
psychoses). A psychosis may not be presumed to have been
incurred in service because the record does not refer to any
findings of such within one year after service discharge.
See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R.
§§ 3.307, 3.309 (2004).
As well, evidence of anxiety and/or depression were also not
indicated until years after service, and there is no
competent evidence linking these conditions to service.
Moreover, it was clearly indicated at the time of
administrative separation from service that there was no
evidence of a neurosis or psychosis separate and apart from
the primary diagnosis of the personality disorder.
As a final point, the Board emphasizes that when entitlement
to a benefit cannot be established or conformed without a
current VA examination or reexamination, and a claimant,
without good cause, fails to report for such examination, the
claim will be rated based on the evidence or record. See
38 C.F.R. § 3.655 (2004). As indicated above, the current
record does not support the veteran's claim, and the veteran
has not cooperated in VA's attempt to secure additional
evidence-specifically, that which might be obtained by VA
examination. In this regard, the Board points out that the
duty to assist is not always a one-way street. In order for
VA to process claims, individuals applying for benefits have
a responsibility to cooperate with the agency in the
gathering of evidence necessary to establishing entitlement
to benefits. See Wood v. Derwinski, 1 Vet. App. 190, 193
(1991).
For all the foregoing reasons, the Board must conclude that
an acquired psychiatric disorder was not incurred or
aggravated in service, and that the claim on appeal must be
denied. As the preponderance of the evidence is against the
claim, the benefit-of-the-doubt doctrine is not applicable in
the instant appeal. See 38 U.S.C.A § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1991).
ORDER
Service connection for a psychiatric disorder, to include
major depression and a personality disorder, is denied.
____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs